An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

employment to the individual solely on the basis that he or she has been convicted of a violent or serious felony. 220

4. C ONSIDERATION O F A PPLICANTS W ITH O THER C RIMINAL C ONVICTIONS If a school learns that an applicant has a criminal conviction that does not automatically disqualify the applicant from employment as set forth in section G.3 above, the school must be able to demonstrate that its consideration of the criminal conviction is job-related and consistent with business necessity. Regulations approved by the California Office of Administrative Law, effective July 1, 2017, provide schools with additional burdens if they make employment decisions that adversely impact individuals belonging to a protected status set forth in the FEHA, including gender, race, and national origin. 221 Therefore, in order to help protect itself from potential liability, a school that declines to hire an applicant based on a criminal conviction that does not automatically disqualify the applicant from employment must evaluate whether its consideration of the criminal conviction is job-related and consistent with business necessity. 222 To do so, the school must be able to demonstrate that its consideration of the conviction is appropriately tailored to the job sought, taking into account at least the following factors: 1. The nature and gravity of the offense or conduct; 2. The time that has passed since the offense or conduct and/or completion of the sentence; and 3. The nature of the job held or sought. 223 A blanket exclusion of any persons convicted of any crime would not be job-related and consistent with business necessity. Instead, the above factors must be applied to each circumstance. Under the new regulation, in the event an applicant brings a claim against the school for failing to hire the applicant based on a criminal conviction under the FEHA, the school can establish that the consideration of the criminal history information is appropriately tailored to the job in one of two ways: 1. By conducting an individualized assessment of the circumstances and qualifications of the applicant excluded by the conviction screen. Before making any decision not to hire the applicant, the school must provide notice to the applicant that he or she has been screened out because of a criminal conviction and provide the applicant with a reasonable opportunity to demonstrate that the exclusion should not be applied due to his or her particular circumstances. The school must also consider whether the additional information warrants an exception.

2. By demonstrating that any “bright-line” conviction disqualification or consideration rule a school may have (that is, one that does not consider

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 73